Google and Italy

by Maria on February 24, 2010

Three Google executives have been convicted of violating Italian privacy law because of a children’s bullying video posted briefly by Google in 2006. Although Google took down the offending video of several children in Turin cruelly taunting a mentally disabled boy, and subsequently helped authorities to identify and convict the person who posted the video, three executives were convicted today of violating privacy. A fourth employee who has since left the company had his charges dropped, which seems to indicate that a political point is being made. The executives in question are outraged, and former UK Information Commissioner Richard Thomas is quoted as saying the episode makes a mockery of privacy laws.

For years I’ve observed that Italy always pushes for the most extreme EU version of laws about privacy and security and then domestically gold-plates them into laws that would seem more at home in Turkmenistan. It makes other Europeans scratch their heads as the Italians generally aren’t willing or able to enforce their draconian laws. Several years ago over a pint in Brussels, an exasperated UK official told me ‘the Italians have no intention of ever implementing this stuff, but we’re a common law country and if it’s on the books, we actually have to do it’.

Update: Milton Mueller has an interesting take on the decision and makes the point that the E-Commerce Directive has not aged well in an era of user-generated content.
For years, the Italians have chipped away domestically at essential principles of European Internet law such as ‘mere conduit’ – the idea that a postal service or telco isn’t responsible for the content of communications it carries – and ‘no prior authorisation’, the ban on requiring websites or other information society service providers to somehow register with the government before they launch. This seems like a particular instance of the more general ills of Berlusconi’s Italy.

For much of the past decade, Italy provided some of the most compelling characters in European privacy circles. Most influential on the data protection side was Stefano Rodota, chair of the influential Article 29 Working Party, a dour man who never met a company or piece of new technology he seemed to like the look of. For all of Rodota’s firm views on the need to buttress data protection against changing business models and mores, he couldn’t reverse the inexorable tide of opportunistic law enforcement legislation that followed September 11.

Many will remember Rocco Buttiglione, the hardline conservative proposed as Commissioner of the ironically named DG Justice, Freedom and Security. Buttiglione’s antipathy to gays and his extremist Catholic views about the role of women almost brought down the new Commission. He was eventually withdrawn and Berlosconi instead put in Franco Frattini who oversaw four years of extraordinary policy laundering and the persistent undermining of Europeans’ civil rights. During the Danish cartoon episode, Frattini had a hard time defending freedom of speech, a concept to which he is not temperamentally close. He was far happier trying to ban video games or monitor Internet content.

My stand-out favourite was the dashing but not entirely reliable MEP, Marco Cappato. He was elected as part of the Lista Bonino of the Italian radical party which campaigns for social and economic libertarianism. (By which I mean actual libertarianism, not the pretendy American ‘I’m really a Republican but don’t want to call myself one’ or ‘I’ve already got enough power and money and would rather not pay any tax, thanks’ types of libertarianism.) Cappato was a glamourous figure in the European Parliament, with his sexy human rights issues, unruly Dr McDreamy hair and indiscriminate flirting.* Cappato’s energy and stylishness fed the suspicion that he preferred rhetoric and PR stunts to the hard grunt of parliamentary process. But he achieved at least as much for the European Parliament and for privacy as anyone else could have as parliament’s rapporteur for the directive on data protection and electronic communication, which is to say not an awful lot.

The odd thing about the Italians in Brussels is that they seemed always to propose quite extreme privacy protections at the same time as draconian measures of state surveillance and intervention. Until today, I’d long thought Italy mostly likes to keep lots of potentially invasive and contradictory privacy and surveillance laws on the books but only threaten to implement them. The inscrutable power plays that motivate Italy’s murky judicial system mean we can only speculate about why a prosecution was taken against Google just now for what is, sadly, an every day occurrence.

Today’s ruling reminds me that Italy’s elite has an utterly different conception of when and how the state should act. More than most other laws, privacy laws define the relationship between the individual and the state. Not only is it difficult or impossible to reach European agreement on privacy laws and how they should be used; the very act of trying exposes a deep, strange gulf of difference.

I’d met Marco at various hearings and meetings in Brussels a couple of years before he finally got around to making a fairly workmanlike pass at me during the Internet Governance Forum in Geneva in 2003. I remember being a bit miffed that he’d taken so bloody long.

The conviction certainly seem bizarre and wrong, but I would like to be assured that Google did not profit from the video. That is, did it run any ads alongside it or overlaying it before the video was taken down?

What happens when a video is posted is automated. Ads will pop up every time a video is viewed. So, of course, for the time the video stayed up, it is very possible Google made money from those who viewed it. How is that relevant to the discussion about culpability of privacy violation?

I am not sure the politics of it are so unscrutable….there is a general uneasiness with the Internet in the Italian political (and in some of the economic) elite. Beyond the obvious fact that the Prime Minister owns a large Television and (traditional) Media group, it is quite clear that even the opposition is much more comfortable with traditional media (which somehow can be controlled). The reasons are both economic and political. From a economic point of view, much advertising is moving from traditional (more lucrative) media outlet towards cheaper (less lucrative for everyone except Google) online tools (therefore, even left-wing media groups are conflicted about the medium). Politically, the Internet can lead to dangerous adventures (see the Beppe Grillo phenomenon) that might be harder to control.
Also, having a law on the book and not using might actually be enough as a threat for these crazy companies, and avoid strong political backlash at the European (and now american) level. Hopefully this case will be enough to wake people up and change course…but I doubt it!

Leaving aside Maria’s private life [dammit, we’re not French], does this not roughly translate to “Italian politicians like to give the state, i.e. themselves, power to act capriciously, depending on whose interests they feel like favouring at any particular moment”? The real question is, as ever, why the electorate and civil society in general lets them get away with it [quite so overtly, one might qualify, as a registered cynic], but I have suspected for a long time that Italy has no civil society in the sense that a more northerly European might recognise. Invoking the shadow of amoral familism might be going too far, or then again it might not?

The real question is, as ever, why the electorate and civil society in general lets them get away with it [quite so overtly, one might qualify, as a registered cynic], but I have suspected for a long time that Italy has no civil society in the sense that a more northerly European might recognise.

I write a Blog about China and Google is having problems there too with hackers. When we talk about privacy in a country like Italy, which is a Western country, we understand, but when China’s government wants Google to censor certain subjects, we see that as wrong without taking into consideration that the Chinese culture is also involved in the decisions the Chinese polticians make.

The message Google is getting here in Italy is that they have a responsiblity to make sure that the privacy of individuals must be maintained. It is too bad that it has to come down to employees at Google getting dragged into court but the Internet cannot be allowed to become a Wild Wild West with Virtual shootouts going on that hurt others.

Recently some teen in the States, I think Florida, hung herself due to being bullied on-line. The challenge is how to control these things from happening, which will require a form fo censorship similar to what the Chinese are struggling to do.

Doc Science, yes that’s it. What I’m trying to get at is the way Italian government actors seem to push for the most punitive or burdensome legislation, be it pro-data protection or pro-law enforcement authority, when their state is such a shambles that they can’t enforce it anyway. Or more, that enforcement seems to be something they hold in reserve for special occasions and political enemies, or to make a point, rather than as a uniform thing.

It’s anecdotal, I know, but the point I was trying to make with the UK civil servant story is that the UK negotiators on data protection were conscious that they – or their colleagues – would have to enforce every word of it on everyone in the country. Not to idealise the mulishly late implementations of data protection law in Europe’s common law jurisdictions, but the intention and the reality of uniform implementation is a strong contrast with Italy.

The conviction certainly seem bizarre and wrong, but I would like to be assured that Google did not profit from the video. That is, did it run any ads alongside it or overlaying it before the video was taken down?

Under US law, at least, the rule is that you can provide an online forum and are not responsible for the content. Thus, if I say something libelous about you here in comments, you can’t sue the Crooked Timber bloggers (at least not successfully). Similarly, under US law, Google would not be responsible for videos posted on an open forum. Italy seems to see the matter differently–but under Italy’s rule, the internet as we know it can’t continue to operate.

“What I’m trying to get at is the way Italian government actors seem to push for the most punitive or burdensome legislation, be it pro-data protection or pro-law enforcement authority, when their state is such a shambles that they can’t enforce it anyway. Or more, that enforcement seems to be something they hold in reserve for special occasions and political enemies, or to make a point, rather than as a uniform thing.”

Why does this seem odd? Of course they want the most punitive legislation possible, precisely so that they can reserve it for political enemies, rather than as a uniform thing. I guess I don’t understand what you think the counter-explanation is (and since I don’t even see the counter-explanation, I can’t understand why you find the obvious explanation so hard to believe).

Does not even come close to the Bavarian judge that ruled the internet service provider is responsible for content and put some compuserve managers on probation.

US laws seem to be unusual liberal on the issue. This blog would be illegal under German law for example (no contact information to find the person to sue ) . I think most countries have some responsibility mechanism for comments/forum content for the person running the forum/blog.

Iceland seems to go the other way right now and tries to do a regulation dumping strategy on internet content to replace their finance regulation dumping.

> A fourth employee who has since left the company had his charges dropped, which seems to indicate that a political point is being made.
The employee who left the company is George Reyes. This is not the same as the fourth person, Arvind Desikan, a friend of mine, who, I am happy to report, had all charges dropped.

Some people habitually talk about the rule of law as if laws enforced themselves in the absence of human will. It’s a sort of animism that reminds me of the scene in the Crito where the laws come trooping out on stage to explain to Socrates why he shouldn’t make a run for it. (I’ve always imagined that the Laws look like the dancing cigarette packs in old TV ads though maybe without the high heels.)

Italy has, or so I’ve been told, the most extensive and severe anti-corruption laws in Europe. Fat lot of good that does.

I lived in italy for a while, and I speak italian, and I am actually an Italian citizen (though I grew up in the US and am a citizen through patrilineal descent).

Partially the Anglo-American-Germanic frustration with Italian law comes from a differing conception of the law; that is, a different social ontology of the law exists in northern Europe than the one that exists in Italy.

The best explanation I ever read was from an Italian archbishop, who wrote something like “in Italy the law describes how angels would act.” In other words, it’s a code of conduct that you are expected to deviate from by nature of your human imperfection, rather than a punitive system designed to enforce a system of social relations via the threat of incarceration.

(Of course there is the threat of socially-mediated punishment, but that it is inconsistent is itself consistent with a different view of the law itself!)

@26: this is, of course, something to which any self-respecting northern European would immediately cry ‘Bullshit!’ Unless, of course once more, one is a male of a certain age discussing the policing of speeding offences, when it would make perfect sense. Not so much amoral familism, as amoral ferrarism?

Thanks Anand and Andy for the clarification about the ‘fourth employee’.

Hix at 21: the German law in question is, I believe, their implementation of the E-Commerce Directive 2000/31. This directive enshrines the ‘no prior authorisation’ requirement and also requires commercial, i.e. ‘e-commerce’, websites to provide meatspace contact details. As memory serves, the German implementation was criticised for requiring non-commercial websites to also provide contact information, given there is no consumer policy rationale for it. It would be highly unusual within Europe and quite wrong under the original objectives of the directive for CT to be required to publish meatspace contact info on the grounds of it being a commercial endeavour. The German requirement was a case of the Germans gold-plating their own implementation, something that goes against the whole idea of harmonisation of commercial legislation and encouragement by the directive of ‘information society providers’. The difference with Italy being, of course, that in Germany the thing is likely to be regularly if not uniformly implemented.

By the by, readers would probably be surprised to know that Crooked Timber is no stranger to individuals trying to invoke privacy legislation regarding their comments and even dynamic IP addresses. They’re on a hiding to nothing. About five years ago, the Artiucle 29 WP tried to stake a claim for individual IP addresses as personal data, and failed. It’s always amazing to me how people will try to make the most tenuous and yet passionately argued connections between the protection of personal data – a quite constrained and well understood set of data under European rules – and stuff like blog comments or dynamic IP. Data protection law seems to attract the angries and the crazies.

29: I think there should be a small prize for the most unlikely “national characteristics” explanation.
“Italians naturally prefer complex and tangled systems of law, and extended and cross-linked systems of obligation, loyalty and kinship, because of their love of spaghetti. In Belgium, the same phenomenon dates back to the heyday of the Flemish lace industry.”

The objections that different countries have different conceptions of the social praxis of law, and that this can be particularly infuriating to the UK, is something that Eurosceptics have been saying for years. But there can’t be anything in that as all Eurosceptics are declared to be xenophobes.

Ajay, no need for a separate explanation for Belgium. There are loads of descendents of Italian immigrants there, and blaming it on the undisciplined foreigners from the south is a tradition with a long history.

Back in the day, my ancestors used to complain how the tangled corruption of the Roman Empire was a clear indication of their inherent incompetence. And look how bad their roads are.

“In other words, it’s a code of conduct that you are expected to deviate from by nature of your human imperfection, rather than a punitive system designed to enforce a system of social relations via the threat of incarceration.”

Except when someone actually is incarcerated. And when does that happen? I’m going with #24.

The challenge is how to control these things from happening, which will require a form fo censorship similar to what the Chinese are struggling to do.

Presumably after we have dealt with offline bullying, which has happened for all time, and is at least 100 times more serious that online bullying, it just doesn’t make as lurid headlines because it is so common.

“In other words, it’s a code of conduct that you are expected to deviate from by nature of your human imperfection, rather than a punitive system designed to enforce a system of social relations via the threat of incarceration.”

Sounds like a line from a comedy (set in the USSR):

Senior inspector: ‘We’ll just wait until (the foreigner) violate the Soviet Penal Code.’
Junior inspector: ‘But Comrade Senior Inspector, what if he doesn’t?’
Senior inspector: ‘Comrade Junior Inspector, the best legal minds in the Soviet Union have determined that one can not even walk across Red Square without committing 27 separate major offenses against the Soviet Penal Code.’

In other words, the Italian legal system sounds like it’s set up so that everybody is guilty of something, and the government always has a handle on people.

The conviction certainly seem bizarre and wrong, but I would like to be assured that Google did not profit from the video. That is, did it run any ads alongside it or overlaying it before the video was taken down?

WSJ: “Prosecutors argued in court that Google Video, the site that hosted the video, was responsible for its content because management running the site had drafted a plan to sell advertising on it. [The defense lawyer] argued in court that Google Video never actually offered ad space in Italy, and that the executives on trial played no role in the preparation of the marketing plan.”

There’s also a weird combination, in Berlusconi’s coalition, of punitive know-nothing populism (who in their right mind would send Franco Frattini to Europe?) with a personalised and patrimonial approach to running the economy, not so much indifferent to the law as positively dedicated to circumventing it. So the bigot vote is secured by getting policies against them (just about any ‘them’ will do) written into law – and if any of ‘us’ accidentally get in the firing line we can always pull strings to stay out of court, or failing that to stay out of prison.

I’m interested in the concept of a “workmanlike pass”. Was it in the manner of an Italian workman or an Irish workman?

He asked her out for a drink, didn’t turn up until three hours later, when he bought her an orange juice by mistake, went back to the bar to get the right drink and hasn’t been seen since. Then the barman let her know that the bill was €55.

[…] Acknowledging that Google hasn’t always been open about how it mines the roughly 800 terabytes of personal data it has gathered since 1998, Schmidt apologized to users— particularly the 1,237,948 who take daily medication to combat anxiety—for causing any unnecessary distress, and he expressed regret—especially to Patricia Fort, a single mother taking care of Jordan, Sam, and Rebecca, ages 3, 7, and 9—for not doing more to ensure that private information remains private.

Monday’s apology comes after the controversial launch of Google Buzz, a social networking platform that publicly linked Gmail users to their most e-mailed contacts by default.

“I’d like nothing more than to apologize in person to everyone we’ve let down, but as you can see, many of our users are rarely home at this hour,” said Google cofounder and president Sergey Brin, pointing to several Google Map street-view shots of empty bedroom and living room windows on a projection screen behind him. “And, if last night’s searches are any indication, Boston’s Robert Hornick is probably out shopping right now for the spaghetti and clam sauce he’ll be cooking tonight.”

“Either that, or hunting down that blond coworker of his, Samantha, whose Picasa photos he stares at every night,” Brin added.